Pinckney v. Snideman

----ooOoo----

Joy Pinckney,
Plaintiff and Appellant,

v.

John David Snideman,
Defendant and Appellee..

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990944-CA

F I L E D
October 5, 2000 2000 UT App 275 -----

Fourth District, Provo Department
The Honorable Merrill L. Hermansen

Attorneys:
Richard L. Tretheway, Springville, for Appellant
Thomas J. Klc, Salt Lake City, for Appellee

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Before Judges Greenwood, Davis, and Thorne.

DAVIS, Judge:

Pinckney appeals both the trial court's ruling that Snideman was not the real party in interest and the trial court's award of attorney fees to Snideman. We reverse and remand for a new trial on Pinckney's claim for unlawful detainer.

Pinckney brought an unlawful detainer action as assignee of the beneficial interest under a trust deed executed by Prodigy Enterprises, Inc. (Prodigy) as trustor. In the event of default by Prodigy, the trust deed provided that the beneficiary could take possession of the property and sue for rents, issues, and profits.

Pinckney argues that the trial court erred in concluding that Snideman was not a proper party in the unlawful detainer action. The trial court's interpretation of the statute defining unlawful detainer is a question of law which we review for correctness. See Cache County v. Beus, 1999 UT App 134,¶8, 978 P.2d 1043.

"A tenant of real property, for a term less than life, is guilty of an unlawful detainer . . . when he continues in possession, in person or by subtenant, after default in the payment of any rent. . . ." Utah Code Ann. § 78-36-3(1) (1999).

"Unlawful detainer, however, is an action to remove a tenant from possession and is primarily against the person in possession. It is not similar to a quiet title action wherein anyone with any interest should be joined. Neither is it similar to an action upon the promissory note." Pearce v. Shurtz, 2 Utah 2d 124, 270 P.2d 442, 443 (1954). Furthermore,
  [n]o person other than the tenant of the premises . . . shall be made a party defendant in the proceeding . . . nor shall any proceeding abate, nor the plaintiff be nonsuited, for the nonjoinder of any person who might have been made a party defendant; but when it appears that any of the parties served with process or appearing in the proceedings are guilty, judgment shall be rendered against those parties. Utah Code Ann. § 78-36-7(1) (1999).

Pinckney filed his complaint of unlawful detainer against Snideman because Snideman was in possession of the property.(1) Therefore, we reverse the judgment of the trial court because Snideman was a real party in interest and an appropriate defendant in the unlawful detainer proceeding.

Pinckney also argues that the trial court erred in awarding attorney fees to Snideman because there was no contract between Pinckney and Snideman providing for the award of attorney fees.

"[W]hether attorney fees are recoverable in an action is a question of law, which we review for correctness." Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998). Generally, "[i]n Utah, attorney fees are awardable only if authorized by statute or by contract." Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988).

The trial court awarded Snideman attorney fees pursuant to Utah Code Ann. § 78-27-56.5 (1999) based upon the attorney fees provision in the trust deed and trust deed note. Section 78-27-56.5 provides: A court may award costs and attorney's fees to either party that prevails in a civil action based upon any promissory note, written contract, or other writing executed after April 28, 1986, when the provisions of the promissory note, written contract, or other writing allow at least one party to recover attorney's fees. Utah Code Ann. § 78-27-56.5 (1999).

Here, there was no promissory note, written contract, or any other writing between Snideman and Pinckney. The note and trust deed were between Pinckney and Prodigy, the court made no finding relative to a lease or agreement between defendant and Prodigy providing for attorney fees, see id. § 78-36-10(3) (1999), and Pickney made no claim for fees under the trust or note. Therefore, the trial court erred in awarding attorney fees under the reciprocal provisions of section 78-27-56.5. Furthermore, in light of our ruling, Snideman is no longer a prevailing party, and thus, he is not entitled to attorney fees under section 78-27-56.5.

Thus, we reverse the trial court's ruling that Snideman was not the real party in interest, we reverse the court's award of attorney fees, and we remand for a new trial on Pinckney's claim of unlawful detainer.(2)
 
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
William A. Thorne, Jr., Judge

1. Snideman testified that the property in question was his personal address and that he was living at that address. The trial court made no finding relative to the circumstances under which Snideman possessed the property.

2. In light of our ruling, we do not address the issues raised by Snideman concerning the inadequacy of Pinckney's brief, the preservation of Pinckney's claims, the exclusion of evidence, Pinckney's marshaling burden, and Snideman's request for damages on appeal.